在暖水海港，船舶常常容易发生污底。如果租约中没有特定条款约定，合同各方法律地位总结如下：
问题是搞清楚：污底是因租家的特定指令直接导致的，还是在执行租家正常航次指令过程中产生的？
1.因租家特定指令导致的污底
如果污底是因服从租家指令，前往租约规定的航行区域之外的港口，从而直接导致污底，租家很可能要对污底的后果承担责任。然而，如果租约允许的航行范围包括暖水海港，但租家指令船舶挂靠的暖水海港在规定的航行区域之外，那么由于根据所定租约，船东已经能够预知污底的风险，所以租家不一定承担责任。
船长可能需要执行租家的非法指令，但是执行该指令不能视为船东放弃租约下的权利。如果租家要求船东前往租约规定之外的区域，船东同意执行该航次的前提是不影响船东租约下的权利，而且一旦由于执行该航次指令导致任何损失，租家必须赔偿船东。
2.执行租家正常航次指令过程产生的污底
如果损失是因遵守租家合法、正常的履约指令导致的，则船东不能向租家索赔。因此，如果租家给出的航次指令是合法的，船舶在这正常航行过程中发生的船舶清底、重新喷漆以及由此导致的时间损失均应该由船东承担，因为船东已经知悉并愿意承担这一风险。此类污损在订约时已经可以预见，船东依然同意船舶在暖水海域航行，那么风险应由其自己承担。
然而，即使指令是合法的，如果船东承受的不可预见的责任、损失或者损害是直接由租家的指令导致的，那么通常租家需要做出相应赔偿。尽管租家的指令是合法的，由于租家的指令导致了不可预见的损失，船东有理由索赔租家求得赔偿。这种情况下，会需要一些额外信息，例如：
a.待在暖水海港的时间对于这类船舶来说是否正常。
b.每年的这一时期，这一海域，发生海生物附着船体的状况是否属于正常和可预期的。
在 Kitsa (2005) EWHC 177案中，租家向船舶发出一个合法指令，指令船舶所进入的港口在租约规定的航行区域之内。法院认为，船东和租家在订约时都可以预见到该港口发生船舶污底的风险，并且污底并非偶然或罕见。而且船舶在港口停留的时间并没有比此类船舶通常停留的时间长。因此，该污底风险被认为是操作上的风险，船东在订约时已经同意承担。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
Liability for Hull fouling
Hull fouling may be a likely occurrence at warm water ports. Unless there are specially agreed terms in the charterparty the following legal position of the parties is summarized.
The important question is: Did fouling arise due to charterer’s orders as opposed to while charterer’s orders are being carried out ?
1.Fouling due to charterer’s order :
Where the fouling is shown to be a direct result of obeying charterer’s orders to trade to a port outside the charterparty permitted trade limits, charterers are likely to be liable for the consequences of the fouling. However if the charterparty permitted trading range included warm water ports but the port to which charterers ordered the vessel fell outside the permitted trading range, then it is not likely charterers would be held liable on the basis the owners had in the charterparty assumed the risk of fouling.
The master may obey unlawful orders from the charterers without such conduct amounting to a waiver by owners of the terms of the charterparty. If charterers request the owners to trade to an area outside the trading limits agreed in the charterparty, it is important the owners should only agree to such a voyage subject to rights under the terms of the charterparty not being waived and charterers’ indemnity to owners in event of any loss arising from their order.
2.Fouling while charterer’s order is being carried out: Owners will not be able to claim charterers where losses are incurred as a consequence of complying with charterers’ legitimate and ordinary employment orders. Therefore where lawful orders have been provided by charterers and the vessel incurs hull fouling in the course of ordinary trading, the costs of cleaning the hull, repairing the paint work and time incurred will be borne by the owners in view this is a risk which they consented to bear in the charterparty. Such fouling would be considered forseeable at the time of fixing the charterparty and where the owners agreed the vessel to trade to warm waters this risk would be borne by the owners.
However an indemnity will generally be implied against unforeseen liability, losses and damages sustained by the owners as a direct consequence of charterers’ orders even if the charterers’ orders were lawful. Therefore unforeseen losses which occur despite charterers’ orders being lawful may give the owners a reason to claim charterers under this indemnity. In this circumstance, additional information would be required such as :
a.Whether the time spent at the warm water port was usual for that type of vessel.
b.Whether the marine growth was usual and expected at that place for that time of year.
In the Kitsa (2005) EWHC 177, the charterers had given legitimate orders to the vessel to enter that port as the port of call was within the permitted trading limits of the charterparty. It was held the risk of fouling at that port had been forseeable by owners and charterers at the time of fixing the charterparty and that the fouling was not fortuitous or exceptional, as the vessel had not stayed in that port longer than usual for that type of vessel. Therefore the risk of fouling was held to be an operational risk which the owners had consented to bear when fixing the charterparty.
See attached file : ALCO20120054 Liability for Hull fouling.pdf
